Spain's 'gag laws'

The 'gag laws', most popularly known as 'Ley Mordaza' or 'leys mordaza', have been found to systematically violate citizens' rights in Spain since their implementation last year. The organisation PDLI is following the situation closely and provides a guide on what the laws mean and what they have caused to journalists so far

Spain’s new security laws are violating journalists’ right to do their jobs, according to a new defence committee that is monitoring and contesting the legal reforms.

The Platform for the Defence of Free Expression (PDLI -“Plataforma en Defensa de la Libertad de Información”) is a new Spanish civil society group uniting journalists, lawyers, media houses, social movements and consumer advocates. It was founded in November 2014, arising out of their collective concern over threats to freedom of information and expression in Spain.

The economic and political crisis has inspired new forms of protest, supported in large part by freedom of information and greatly enabled by the Internet. The authorities have reacted with great force in attempting to squash their development, through initiatives that amount to violations of these vulnerable rights.

Recent abuses clearly highlight the precariousness of these essential rights in Spain. There have been legal reforms penalising the rights to protest and to disseminate information, such as the Organic Law Project on the Protection of Citizen Security , and impeding the normal function of the Internet, such as the changed Intellectual Property Law. There are rules which block access to justice, including court fees, or which neutralise the right to public information, as occurred with the poorly-named Transparency Law.

Moreover, there are practices which, through political power, seek control of the media. An example is the discretionary contracting of institutional advertising to ensure the survival of favoured media over those less favoured by the government.

Among its activities, the PDLI has given special emphasis to monitoring and disseminating information on attacks on freedom of expression against media workers and outlets, as well as against activists, social movements and citizens in general.

As part of its work, the PDLI has developed and launched mapea.cc , a collaborative online tool for the collection of data on legal threats to freedom of expression. The group has also sponsored campaigns in reaction to proposed laws restricting the rights to freedom of expression and information. It will launch training programs for journalists, activists and social movements on how to “safely” exercise both these rights.

Triste cumpleaños: Spanish 'gag laws' turn one

July 1st marked the one-year anniversary of the implementation of the rules known collectively as 'Gag Law' - 'Ley Mordaza' - in Spain, i.e. the Law on Protection of Citizen Security and the double reform of the Criminal Code.

This combination of legal reforms represents a major threat to the freedom of information and expression of journalists and social movements. The PDLI has been calling attention to this since the parliamentary process began. This opinion is shared by experts of the United Nations, NGOs such as Amnesty International, groups of lawyers, and almost the entirety of the opposition parties in Spain.

From these ‘gag laws’, the one that has had the most direct impact on journalism has been the Law on Protection of Citizen Security: at least four media professionals have been sanctioned so far, with fines of more than 600 euros each, whilst they were covering newsworthy events for their outlets.

Overall, 40,000 sanctions were imposed within seven months of this law's application, according to statistics from the Ministry of Internal Affairs. In that time frame, 6,217 sanctions were processed for disrespecting the police, this being the second biggest cause for penalties. It entailed an average of 29.4 sanctions per day.

Moreover, 18 sanctions were imposed for the use of photos of police officers or of objects than can identify a member of the security forces; 71 were imposed for obstructing the authorities in complying with administrative resolutions; and 3,700 for disobedience or resistance to authorities or for refusal to show an ID document.

The main risk of this law (apart from its ambiguous reading, which allows for arbitrary interpretations) is that the sanctions are applied through administrative procedures, with no judicial intervention that can deliberate over a possible conflict of overlapping rights.

One of the most controversial articles is the one that considers as a serious offence “the non-authorised use of images or personal or professional data of authorities or members of the Spanish Forces and Security Bodies that can put the security of the officers or their families at risk”. Fines can amount to as much as 30,000 euros.

The first case that surfaced among media professionals was the one related to Axier López , photographer and correspondent for the magazine Argia. He was fined with 601 euros for tweeting photographs of the detention of an activist in Eibar.

Almost at the same time, it became known that the photographer Miguel Ángel Valdivielso from El Diario de Burgos was also fined for “disobedience, resistance to authority, [and] rejection to provide identification”. He had refused to delete photographs of a work accident that resulted in the death of a 24-year-old employee.

In mid-May , Mercè Alcocer, court reporter for Catalunya Ràdio, received a notification also for a fine of 601 euros. This was related to an alleged act of disobedience towards the authorities as she covered the declarations of the former president of Catalonia, Jordi Pujol, and his wife, at the Spanish National High Court on 20 February.

"The courts and streets [are] the main battlefields"

The PDLI has reported to the Ombudsman of Spain the fines that were being imposed on journalists who were carrying out their duty to inform. This has lead the institution to address the Ministry of Internal Affairs, demanding explanations for these events.

The latest journalist to be fined has been Esther Yáñez , reporter from Diario Vice of Canal #0, allegedly for refusing to show her ID to the police, which she has denied. All of them have decided not to pay the fines that have been imposed and appeal against them, with the support of their media. In the event that their allegations are not considered they would have to resort to the courts, in a contested administrative procedure, which is normally a long and costly process.

The PDLI has passed on statistics related to the 'gag laws' to the Parliamentary Groups of the Congress , urging them to scrap the laws. But considering the electoral results in Spain from 26 June, it must be stated that there is not a sufficient parliamentary majority to derogate the three legislative reforms that comprise the ‘gag laws’. There is not an overall majority, and the Spanish People’s Party (Partido Popular, the parliamentary group with the most representatives) would have to reach agreements.

Nevertheless, it is possible that the Law on Protection of Citizen Security may be modified as far as the sanctions to journalists are concerned. For this purpose, and to “dissuade” the authorities from implementing the laws, attention regarding these matters must be necessarily kept on the related political and social agendas.

The PDLI considers that this situation turns the courts and the streets into the main battlefields against the 'gag laws'. In this scenario, the main actions intended by the PDLI, to be kick-started in the second semester of the year - e.g. legal training, giving visibility to instances of abuse via mapea.cc - will be key elements.

*Yolanda Quintada is the Executive Co-ordinator and General Secretary of the PDLI.

ANNEX

The “Gag laws” and Other Threats to Freedom of the Press and Information in Spain

The main causes for concern regarding freedom of expression in Spain are:

1. Challenges to the independence of the Spanish public broadcaster, RTVE

2. Restrictive new legal norms, in particular the Public Security Law, that have collectively become known as the “gag laws” (leys mordaza)

3. Insufficient guarantees for independence in broadcast regulation and licensing

4. Lack of transparency in the allocation of government advertising

5. Transparency legislation that does not meet international standards

6. The trend of government officials of holding “question-less press conferences”

7. Spanish defamation legislation and its application

“The Gag Laws”

All of the above represent grave challenges to freedom of expression and the right to information, but a quartet of controversial legislative changes constitutes an unmistakably serious threat to Spain’s system of fundamental rights and liberties.

The term “ley mordaza” was first used to describe the draft of the Public Security Law[1] (“Ley Orgánica de Protección de la Seguridad Ciudadana”) as a consequence of its anticipated impact on freedom of expression and the right to protest. Following several years of debate and redrafting, the law was definitively passed by the Spanish Parliament in March 2015. Among other provisions of concern, it punishes the unauthorized use of images or data of public security officers with an administrative fine of up to €30,000 and displaying of a “lack of due respect” to security officers with a fine of up to €600. The passage of the law and its entry into force as of July 1, 2015 have formalized a serious threat to freedom of expression and assembly. The law has come under intense criticism from the international media, civil society[2] and U.N. human rights officials.[3]

In addition to the Public Security Law, three further legal reforms – two of which have already come into effect – represent potentially unprecedented threats to civil liberties in the history of democratic Spain. These reforms are:

A Penal Code reform that includes articles targeting the use of social networks to organize and/or protest actions and that criminalize the “public distribution of … of messages and instructions that incite the committing of a crime against the public order [among them “altering social peace”] or that serve to reinforce the decision to carry out such crime

A second Penal Code reform related to terrorism, known as the anti-jihadist pact (“pacto antiyihadista”), passed jointly by the Popular Party and the opposition Socialist Party. These reforms are more serious, due to the harshness of the penalties, the suspension of fundamental rights (such as solitary detention and the violation of the secrecy of communications) for those accused and the vagueness of the language used. It also affects investigative data journalism or leaking by considering certain cybercrimes as terrorism, including “accessing data contained in a system” (Art. 573); reporting on protest activities (Art. 579); “regularly visiting” websites with terrorist content (Art. 575); or regularly engaging in forms of “cyberprotest” such as the dissemination of calls to action or the alteration of an aspect of a website (Arts. 578 and 579).

Proposed reforms to the Law on Criminal Procedure (“Ley de Enjuiciamiento Criminal”). Some of the most criticized aspects, such as an increase in grounds for allowing wiretapping without judicial authorization, were removed from the text in the initial drafting stage (before being introduced in the Congress of Deputies). But other, equally dangerous aspects for liberty have persisted. Provisions included in the current draft of the bill include the legalization of the installation on the part of police of spyware without the knowledge of the user being targeted, whereby the bill does not clarify the extent of judicial oversight; and the secret installation of tracking devices without judicial oversight for 24 hours. During the amendment stage of the bill, additional restrictions were introduced, such as a prohibition on recording or photographing detained persons. This provision was widely interpreted as a reaction to the numerous corruption scandals involving Popular Party officials that were heavily covered by the press. After an uproar by media outlets and concerns expressed by a high-level international mission to Spain in June 2015 led by IPI, the Spanish Justice Minister in July 2015 committed to revising the article in question.

The two penal code reforms, together with the Public Security Law, took effect on July 1, 2015. The reforms to the Law on Criminal Procedure are currently being considered by Parliament. PDLI considers all of these four pieces of legislation to constitute the “gag laws”.

The public security law was passed with the sole support of the ruling Popular Party, which enjoyed an absolute majority in the Spanish parliament, without a single vote by any other of the many, left or right, political parties. Opposition parties, including the Socialist Party, told a second international mission[4] to Spain in June 2015 that they plan to repeal the law if they secure a majority in the 2015 general election. In addition, the Socialist Party and four other opposition parties have challenged the Public Security Law before the Spanish Constitutional Court.[5]

Other Threats to Freedom of the Press and Information in Spain

The current regulation of defamation in Spain falls short of international standards on freedom of expression and the protection of reputation, most prominently by remaining a criminal offense under Arts. 205 (“slander”) and 208 (“insult”) of the Spanish Criminal Code, with the former carrying up to two years in prison. It is a widespread view that Spanish political figures do seek to abuse defamation laws, but participants in the international mission that visited Spain in late 2014 reported back that the vast majority of media practitioners and legal experts that met with them did not view the abuse of defamation laws as a significant threat. On one hand, this is due to the Spanish courts’ willingness to protect freedom of expression in practice, but most significantly as a consequence of the strong legal support more established media outlets can offer to their journalists. The last point, however, raises concerns about the vulnerability of local or alternative media that lack the legal and financial resources of their more established counterparts. It is fully apparent that a general lack of monitoring of the application of defamation laws in the country does not allow for a full assessment of the risks.

Changes to the law on public broadcasting brought forward by the current government in 2012 have resulted in the politicization of the national public radio and television broadcaster (RTVE), allowing for members of the public broadcaster’s governing body to be elected by absolute majority in the Spanish parliament, rather than the previously required two-thirds majority. This allows for a parliamentary majority – as is the case at the moment with the Popular Party government – to unduly influence the composition of the governing body in question, raising questions about the broadcaster’s independence in practice. In April of this year, representatives of RTVE’s News Council (Consejo de informativos), an internal body formed by RTVE journalists – elected by their fellow journalists and tasked with safeguarding the broadcaster’s independence – delivered a report to the European Parliament describing several examples of alleged manipulation of news broadcasts.[6]

PDLI also feels that RTVE is in risk of not fulfilling its public function when the latter’s editorial decision makers deliberately ignore events of high public interest such as protest movements and the rise of new political actors, as was the case for months with the political party Podemos and its leader, Pablo Iglesias, despite his growing prominence in Spanish society.

A further challenge is the lack of transparency regarding institutional advertising in the media. An already opaque system was made even worse when the Spanish government in 2014 opted to place institutional advertising in the hands of private advertising firms, essentially creating a loophole around transparency requirements. While public bodies must disclose advertising contracts with media houses, for example, private firms are exempt.

It is also particularly worrisome that Spain’s first law on transparency and access to information, passed in 2013, has failed to meet European and international standards.